Moran v Schwartz Publishing Pty Ltd (No 4)
[2015] WASC 328
•1 SEPTEMBER 2015
MORAN -v- SCHWARTZ PUBLISHING PTY LTD [No 4] [2015] WASC 328
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 328 | |
| 01/09/2015 | |||
| Case No: | CIV:1894/2014 | 11 AUGUST 2015 | |
| Coram: | KENNETH MARTIN J | 11/08/15 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed as amended | ||
| B | |||
| PDF Version |
| Parties: | TOBIAS FRIEDRICH MORAN SCHWARTZ PUBLISHING PTY LTD VIRGINIA PETERS |
Catchwords: | Practice and procedure Implied undertaking Obligation not to use discovered documents or documents produced on subpoena for purposes other than the proceedings Application for leave to use court documents and documents produced on subpoena for limited purpose of making complaint about a third party to the Office of the Legal Services Commissioner of New South Wales Public interest Turns on own facts |
Legislation: | Nil |
Case References: | Bedshed Franchising Pty Ltd v Battersby [No 2] [2015] WASC 281 Crest Homes Plc v Marks [1987] AC 829; [1987] 3 WLR 293 Esso Australia Resources Ltd v Plowman [1995] HCA 19; (1995) 183 CLR 10 Hearne v Street [2005] HCA 36; (2005) 235 CLR 125 Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; (2005) 218 ALR 283 Medway v Doublock Ltd [1978] 1 WLR 710; [1978] 1 All ER 1261 Minister for Education v Bailey [2000] WASCA 377; (2000) 23 WAR 149 Moran v Schwartz Publishing Pty Ltd [2014] WASC 334 Moran v Schwartz Publishing Pty Ltd [No 2] [2015] WASC 35 Moran v Schwartz Publishing Pty Ltd [No 3] [2015] WASC 215 Prudential Assurance Co Ltd v Fountain Page Ltd [1991] 1 WLR 756; [1991] 3 All ER 878 Re Addstone Pty Ltd (In liq); Ex parte Macks [1998] FCA 1680; (1998) 30 ACSR 156 Spalla v St George Motor Finance Ltd [2004] FCA 1014; (2004) 209 ALR 703 Springfield Nominees Pty Ltd v Bridgelands Securities Ltd [1992] FCA 720; (1992) 110 ALR 685 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
SCHWARTZ PUBLISHING PTY LTD
First Defendant
VIRGINIA PETERS
Second Defendant
Catchwords:
Practice and procedure - Implied undertaking - Obligation not to use discovered documents or documents produced on subpoena for purposes other than the proceedings - Application for leave to use court documents and documents produced on subpoena for limited purpose of making complaint about a third party to the Office of the Legal Services Commissioner of New South Wales - Public interest - Turns on own facts
Legislation:
Nil
Result:
Application allowed as amended
Category: B
Representation:
Counsel:
Plaintiff : Mr M L Bennett
First Defendant : No appearance
Second Defendant : No appearance
Solicitors:
Plaintiff : Bennett + Co
First Defendant : Carmel Galati
Second Defendant : Carmel Galati
Case(s) referred to in judgment(s):
Bedshed Franchising Pty Ltd v Battersby [No 2] [2015] WASC 281
Crest Homes Plc v Marks [1987] AC 829; [1987] 3 WLR 293
Esso Australia Resources Ltd v Plowman [1995] HCA 19; (1995) 183 CLR 10
Hearne v Street [2008] HCA 36; (2008) 235 CLR 125
Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; (2005) 218 ALR 283
Medway v Doublock Ltd [1978] 1 WLR 710; [1978] 1 All ER 1261
Minister for Education v Bailey [2000] WASCA 377; (2000) 23 WAR 149
Moran v Schwartz Publishing Pty Ltd [2014] WASC 334
Moran v Schwartz Publishing Pty Ltd [No 2] [2015] WASC 35
Moran v Schwartz Publishing Pty Ltd [No 3] [2015] WASC 215
Prudential Assurance Co Ltd v Fountain Page Ltd [1991] 1 WLR 756; [1991] 3 All ER 878
Re Addstone Pty Ltd (In liq); Ex parte Macks [1998] FCA 1680; (1998) 30 ACSR 156
Spalla v St George Motor Finance Ltd [2004] FCA 1014; (2004) 209 ALR 703
Springfield Nominees Pty Ltd v Bridgelands Securities Ltd [1992] FCA 720; (1992) 110 ALR 685
- KENNETH MARTIN J:
(This judgment was delivered extemporaneously on 11 August 2015 and has been edited from the transcript.)
Introduction
1 The plaintiff in this matter seeks the leave of the court to use documents produced in these proceedings for a limited purpose that is ancillary to these proceedings.
2 The plaintiff's application was brought by way of a minute of proposed orders filed on 31 July 2015. The plaintiff seeks leave to, in effect, utilise outside this litigation the documents as set out in schedule A to that minute - for a limited purpose of making a formal complaint (with those documents annexed) to the Office of the Legal Services Commissioner of New South Wales (OLSC). The complaint foreshadowed would be in relation to the husband of the second defendant, Mr Rodd Peters. It is also proposed, if necessary, to use the documents in any subsequent correspondence to the OLSC in relation to the complaint, or any matter incidental thereto.
3 The plaintiff's application was received by way of email to my Associate, in compliance with the Rules of the Supreme Court 1971 (WA) O 4A r 17(2) (RSC). The solicitor for the defendants was served with the relevant application materials by way of the same email. In reply, I informed the parties that the application would be heard on Tuesday, 11 August 2015 and notified the solicitor for the defendants that, given their decision not to consent to or oppose the plaintiff's application (evidenced by attachment TFM-15 at page 57 of Mr Moran's affidavit affirmed 31 July 2015, which I will discuss further below), they did not need to attend the 11 August 2015 hearing if they wished not to. By email of Thursday, 6 August 2015, the solicitor for the defendants notified the court that the defendants did not wish to appear at the hearing for this application, and ultimately did not attend. Accordingly, the plaintiff's application was effectively heard ex parte.
Application materials
4 Schedule A to the plaintiff's application is important as it identifies, effectively, two different tranches of material that are sought to be the subject of leave granted on the application. The first tranche consists of documents produced in answer to subpoenas issued out of this court to the Department of Immigration and Border Protection (Department) at the instigation of the plaintiff, Mr Moran. There are three such subpoenas, issued on 24 November 2014, 10 December 2014 and 19 December 2014.
5 The circumstances of those subpoenas being issued, and the Department's response, are explained in the affidavit of Mr Moran, filed and affirmed 31 July 2015. By that affidavit, Mr Moran explains that the Department produced information to the Supreme Court in compliance with the subpoenas issued against it. Included in the provided documents were the pages attached as TFM-5 and TFM-6 to Mr Moran's affidavit, seen at pages 30 and 31.
6 TFM-5 (page 30) was produced in answer to the first subpoena and is an anonymous letter which is typed and dated 7 November 2014. It is also stamped: 'Received 20 November 2014 IMMI Melbourne'.
7 Page 31 of Mr Moran's affidavit shows a copy of the face page of the covering envelope of that anonymous letter produced also in answer to that first subpoena and indicating that it had been sent to the 'Dob-in-Service', Information Collection Unit, Department of Immigration and Border Protection, GPO Box 241, Melbourne, Victoria. I also note that although the letter is typed, the face of the envelope is in longhand print.
8 Significant to that envelope (which I note shows a 70 cent stamp having been applied to it) is the computer generated code SWLF and then the notation '17 Nov 14', then a further notation which looks like 'ML510' or '570'.
9 The plaintiff, through his solicitors, telephoned Australia Post to try to determine the meaning of that code. His solicitors were informed that 'SWLF' is a reference to the Sydney West Letter Facility (Mr Moran's affidavit par 30). By conducting a Google search, Mr Moran also attests that the Sydney West Letter Facility may refer to the Australia Post letter facility that exists in Strathfield, New South Wales (Mr Moran's affidavit par 31). I return to the location of that particular sorting facility later in these reasons to explain that location's possible relevance.
10 The content of TFM-5, the anonymous letter to the 'Dob-in-Service' of 7 November 2014, makes reference to 'Tobias Friedrich Moran, DOB' - which I infer is an initialism for date of birth - '2 March 1980' and then to a specific file number - OSF2011001739. The anonymous letter proceeds:
I refer to the above person who was granted a permanent spouse visa in 2013.
11 What follows on in the letter from that introduction is the reference to a number of materials with respect to the 'above person', before concluding:
I would request the Department investigate its records and consider whether there are grounds for cancellation of Mr Moran/Suckfuell's visa under sections 109 or 116 of the Migration Act 1958.
Yours sincerely
Anonymous
12 In my opinion, the letter of 7 November 2014 does appear, prima facie, to have been professionally composed. The words 'in confidence'appear bolded and in italics at the head of the letter before the letter addresses: 'To whom it may concern'. The substantive contents of the letter are seen set out with structured dot points, and though I will not reproduce the letter in full here, its author has adopted language and grammatical construction that would be expected of a professionally drawn letter (though I note the letter does not display a heading, other than the direction to the Dob-in-Service of the Information Collection Unit in Melbourne).
13 A different letter, produced by the Department in compliance with the subpoena of 19 December 2014 (attachment TFM-9 at page 37 of Mr Moran's affidavit), establishes that there were no Freedom of Information (FOI) requests in respect of Mr Moran/Suckfuell's file with the Department, other than the request made by Mr Moran himself on 26 November 2014 (the applicable date range of the 19 December 2014 subpoena was for the period between 20 July 2011 and 7 November 2014. See attachments TFM-9 and TFM-10 of Mr Moran's affidavit, particularly page 46 and pages 48 - 50).
14 I return to the potential significance of the location of the Strathfield Letter Facility. By reference to the printout of a Google Maps search, found attached as TFM-13 at page 53 of Mr Moran's affidavit, he points out that the offices of Peters Linnette Lawyers are shown to be some 17 kilometres from the Strathfield Postal Facility, through which the anonymous complaint letter to the 'Dob-in-Service' would appear, eventually, to have been processed subsequent to being posted (whenever that happened). Mr Rodd Peters is a lawyer of Peters Linnette Lawyers. Inferences may or not be drawn from an asserted geographical proximity as between the business premises of Peters Linnette Lawyers and the Strathfield Letter Facility - where the anonymous letter came to be sorted at some point.
15 The anonymous letter of 7 November 2014, along with its covering envelope, are relevant to the plaintiff's application. They identify two crucial facts the plaintiff seeks to rely upon in order to pursue a complaint to the OLSC. The first is the information included in the complaint letter, in particular, the unique file number identification code the letter uses. The second is the SWLF code which enables the plaintiff to draw, as his likely conclusion, that the letter had been sorted at the Strathfield mail facility and then establish a relative proximity of that facility to Mr Rodd Peters' professional place of work.
16 That is the basis for the plaintiff seeking to rely upon the first tranche of documents, as is seen at par 1 of annexure A to the plaintiff's application of 31 July 2015.
17 The other tranche of documents sought to be opened up under the application is seen at par 2 of annexure A. The documents at par 2 are court documents that were used or relied upon during the earlier security for costs application in this court and which I heard on 5 December 2014. Within another affidavit of Mr Moran, affirmed 31 October 2014, he had opposed an order for security for costs against him. That affidavit of Mr Moran was ultimately read (formally, not verbally) into evidence at the hearing of that application.
18 During the course of dialogue with counsel for the plaintiff at this hearing, the scope of the documents sought to be produced to the OLSC was narrowed somewhat to only items 2.1 and 2.3 of those seen currently listed at par 2 of the plaintiff's application. Item 2.1 is the defendant's application by chamber summons seeking security for costs of 2 October 2014. Item 2.3 is the affidavit of Mr Moran affirmed 31 October 2014, for the security for costs application to which I have just referred.
19 Relevantly, in that 2014 affidavit as attachment TFM-8 at page 14, Mr Moran had attached a copy of a letter from the Department of Immigration and Citizenship (as it then was) to Mr Moran of 13 August 2013. He did so in the context of his par 17:
Attached hereto and marked TFM-8 is a true (but partially redacted) copy of a letter I received from the Australian Government (Department of Immigration and Citizenship) dated 13 August 2013 enclosing my permanent visa of the same date.
20 That all happened in 2014 in the context of the security for costs application by the defendant. One relevant factor where security is sought against an individual is whether or not that individual is a permanent resident of Australia. The factor is relevant in the context of an applicant satisfying the requirements of RSC O 25, which establishes criteria it is necessary to meet for an applicant to succeed when seeking security for costs. In due course, I resolved that application earlier this year in Moran v Schwartz Publishing Pty Ltd [No 2] [2015] WASC 35, ultimately ordering security in the amount of $500,000 against the plaintiff.
21 With the two tranches of documents in mind, the plaintiff's argument in support of a conclusion that Mr Peters is likely the author of the anonymous 7 November 2014 letter to the Department, as I understand it, proceeds as follows: information put before the court on the security for costs application included the many affidavit materials relied upon: see [18] Moran v Schwartz Publishing Pty Ltd [No 2]. One of the affidavits read and relied upon was Mr Moran's affidavit of 31 October 2014. Attached to that affidavit was attachment TFM-8 showing Mr Moran's unique Department file number. It is evident from the 7 November 2014 anonymous letter that Mr Moran's Department file number was there used to refer to him. It is highly unlikely that such information would have been available to anyone not involved directly with the Department, particularly given a proven absence of any FOI request made to the Department for Mr Moran's file (aside from Mr Moran himself). The file number information was available, however, to the parties in these proceedings - from Mr Moran's affidavit of 31 October 2014, relied upon for the purpose of the December security for costs application. Those matters, along with a close geographical proximity of the Strathfield Letter Facility to Mr Peters' office, suggests, it is put, a likelihood that Mr Rodd Peters is the actual author of the 7 November 2014 letter, which was written with the benefit of the information obtained from Mr Moran's affidavit of 31 October 2014 (particularly, his Department file number). Or so the argument goes.
22 But the essence of the grievance foreshadowed as being sought to be put before the OLSC by Mr Moran is not - again, as I understand it - so much that it was Mr Peters who likely authored and sent that letter to the Dob-in-Service. Rather, the foreshadowed grievance is Mr Peters' alleged utilisation of the confidential affidavit information which, it is contended, by inference, that Mr Peters, through his relationship to his wife, as the second defendant, was able to obtain access to and use in the anonymous letter. That is the confidential information in the attachment TFM-8 to the Moran affidavit of 31 October 2014 and, in particular, from the letter by the Department to Mr Moran that was partially redacted, but which nevertheless made an open reference to Mr Moran's department file number OSF2011001739, seen used and prominently displayed on the anonymous dob-in complaint letter.
23 A basis given for the making of a complaint to the OLSC is that the second defendant's husband is a practitioner in New South Wales. He therefore falls under the jurisdiction of the OLSC from a perspective of assessing the propriety of his conduct as a professional legal practitioner.
Implied undertaking: the law
24 Information produced as a result of invoking the compulsory processes of this court is the subject of an implied undertaking that the information will only be used for the purposes of the proceedings. The current action, CIV 1894 of 2014, has seen since last year, Mr Moran, as plaintiff, pursuing defamation and damages claims against Schwartz Publishing Pty Ltd, as first defendant, and Mrs Virginia Peters, as second defendant - as the author of the book 'Have You Seen Simone?' That book is the subject of these proceedings, as an alleged defamation against Mr Moran's reputation.
25 I have dealt with the aspects of the underlying defamation action extensively in prior interlocutory reasons (see Moran v Schwartz Publishing Pty Ltd [2014] WASC 334, Moran v Schwartz Publishing Pty Ltd [No 2] and Moran v Schwartz Publishing Pty Ltd [No 3] [2015] WASC 215).
26 The parties to the proceedings are bound by the implied undertaking to only use materials obtained as a result of invoking the discovery processes of the court in these proceedings for the purpose of progressing this litigation - within which they have obtained such information. That obligation follows unless they obtain the leave of the court to use such information for some other purpose.
27 This implied undertaking, well understood to legal practitioners who conduct litigation, would likely extend to embrace Mr Rodd Peters as a non-party to the proceedings, in circumstances where, if any discovered material came to be revealed to him (via the defendants) it must surely have been clear to Mr Peters that the origins of such materials were from these legal proceedings, which heavily involve his wife as second defendant, and where he has previously acted for a time as the legal representative of both defendants: see Moran v Schwartz at [94]. In other words, Mr Peters would surely be likely to appreciate the sources of such information and as a legal practitioner know of the implied undertaking.
28 Concerning the law about the implied undertaking and its potential extension to going beyond the parties to the litigation, I refer to a number of observations by the plurality in Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 [96]. There, Hayne, Heydon and Crennan JJ, addressing the implied undertaking, said:
Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits. [My note: authority for the inclusion of affidavits in the plurality's list is found in footnote 101 of that extract (being a reference to Medway v Doublock Ltd [1978] 1 WLR 710; [1978] 1 All ER 1261 and Re Addstone Pty Ltd (In liq); Ex parte Macks[1998] FCA 1680; (1998) 30 ACSR 156)].… (footnotes omitted)
29 At the foot of page 159, at [107], the plurality continued:
The importance with which the courts have viewed the obligation under discussion is indicated by the fact that although it can be released or modified by the court, that dispensing power is not freely exercised, and will only be exercised where special circumstances appear. (footnotes omitted)
30 Footnote 125, which appears at the end of that passage in Hearne, displays a reference to Esso Australia Resources Ltd v Plowman [1995] HCA 19; (1995) 183 CLR 10, 37. The Hearne plurality then cite an extract from a decision of Hobhouse J of the High Court of England and Wales in Prudential Assurance Co Ltd v Fountain Page Ltd [1991] 1 WLR 756, 775; [1991] 3 All ER 878 in these terms:
Circumstances under which that relaxation would be allowed without the consent of the serving party are hard to visualise, particularly where there was any risk that the statement might be used directly or indirectly to the prejudice of the serving party.
31 The Hearne plurality continued, at [108], to assert that Hobhouse J, in the same Prudential Assurance decision, had been correct to conclude that:
The expression of the obligation as an implied undertaking given to the court derives from the historical origin of the principle. It is now in reality a legal obligation which arises by operation of law by virtue of the circumstances under which the relevant person obtained the documents or information (764).
32 At [109] the plurality in Hearne continued, as regards the extension of this implied undertaking to catch persons going beyond mere parties to the litigation, to observe:
The primary person bound by the relevant obligation is the litigant who receives documents or information from the other side pursuant to litigious processes. The implied undertaking also binds others to whom documents and information are given. For example, expert witnesses, who are not parties, commonly receive such documents and information and are bound by the obligation. It is likely that, in the future, documents and information will be provided to persons funding litigation, who will likewise be bound by the obligation. In Harman v Secretary of State for Home Department [1983] 1 AC 280, the person in contempt was the party's solicitor. In Hamersley Iron Proprietary Limited v Lovell (1998) 19 WAR 316, it was the party's industrial advocate. In Watkins v A J Wright (Electrical) Ltd [1996] 3 All ER 31, it was a person who was not qualified as a solicitor in the forum, but engaged in day to day conduct of the litigation. Laddie J thought 'it would be just as much a contempt of court for, say, a shorthand writer or court usher to disclose discovery documents outside the action as it would be for one of the parties to do so' [citing Bourns v Raychem Corporation [No 3] [1999] 1 All ER 908 at 916 [18]]. In both England and Australia, these instances have been broadened into a wider and coherent principle. Thus Hobhouse J said [in Prudential Assurance]: '[A]ny person who knowingly … does acts which are inconsistent with the undertaking is himself in contempt and liable to sanctions.' In Watkins v A J Wright (Electrical) Ltd Blackburne J said:
'I cannot accept the submission that ignorance of the implied undertaking provides a person with a defence to proceedings for contempt arising out of his breach of the implied undertaking. As is well known, the implied undertaking arises by implication of law on the giving of discovery in the course of a civil action where discovery is required to be given.' (footnotes omitted)
It would be inequitable if a party were compelled by court process to produce private documents for the purposes of the litigation yet be exposed to publication of them for other purposes. No doubt the implied obligation must yield to inconsistent statutory provisions and to the requirements of curial process in other litigation, eg discovery and inspection, but that circumstance is not a reason for denying the existence of the implied obligation.
34 At [110] of the Hearne reasons, the plurality made reference to this court's decision in Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316, 334 - 335 (Anderson J, Pidgeon & Ipp JJ concurring) observing: 'The implied undertaking is binding upon anyone into whose hands the discovered documents come, if he knows that they are obtained by way of discovery.'
35 The plurality also referred to observations of Ryan J in Spalla v St George Motor Finance Ltd [2004] FCA 1014; (2004) 209 ALR 703, 717 [40]: 'To be effective, the undertaking must bind the litigant by whom it is given and his or her privies.'
36 Finally, I extract from [117] of the Hearne decision, the plurality's comments towards the implied undertaking possibly being expressly modified by a court:
The appellants submitted that the majority approach did not sit comfortably with the fact that an implied undertaking may be expressly modified by the court. Again, they did not say why not. Modification is not common. While legal obligations are not usually modified by courts to suit the interests of particular parties, it can happen, for example under companies and trustee legislation. (my emphasis in bold)
37 As regards determining the appropriate test for evaluating whether or not to 'relax' a party's obligations under the implied undertaking, I turn to some helpful Federal Court authority on the topic. First is a decision of Wilcox J in Springfield Nominees Pty Ltd v Bridgelands Securities Ltd [1992] FCA 720; (1992) 110 ALR 685. His Honour at [26] referred to necessary special circumstances that must subsist for a court to grant leave excusing the need for compliance with the implied undertaking (in that respect, Wilcox J relied upon an earlier decision of the High Court of England and Wales, Crest Homes Plc v Marks [1987] AC 829; [1987] 3 WLR 293). Wilcox J then said:
For 'special circumstances' to exist it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present. The matter then becomes one of the proper exercise of the Court's discretion, many factors being relevant. It is neither possible nor desirable to propound an exhaustive list of those factors. But plainly they include the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the document came into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding.
38 Wilcox J's observations were then effectively endorsed and applied by the Full Federal Court in Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; (2005) 218 ALR 283. This was a decision of Branson, Sundberg and Allsop JJ, who cite the above mentioned passage from Springfield Nominees with approval (at [31]). Their Honours then mention in their reasons seven dot points which correspond to factors extracted by Wilcox J as seen above. I would note the following passage at [31] of the Liberty Funding decision in particular:
The notion of 'special circumstances' does not require that some extraordinary factors must bear on the question before the discretion will be exercised. It is sufficient to say that, in all the circumstances, good reason must be shown why, contrary to the usual position, documents produced or information obtained in one piece of litigation should be used for the advantage of a party in another piece of litigation or for other non-litigious purposes. (my emphasis in bold)
39 At the end of the day, of course, the decision over the grant of leave or not in this context is a fact-specific evaluation. The issue is ultimately a matter of the court's discretion. When weighing particular factors as were identified by Wilcox J in Springfield Nominees, it is important to be cognisant that each case is distinct. Those factors are a helpful guide. But each case will need to be evaluated on its unique merits.
40 I mention a helpful article about the implied undertaking by Professor Matthew Groves, see: 'The Implied Undertaking: Restricting the Use of Material Obtained During Legal Proceedings' (2003) 23 Australian Bar Review 314. Of particular use is that learned author's tracking of the requirements to show 'special circumstances' at 328 - 331 of that article, and analysed by reference to leading decisions in Crest Homes, Springfield Nominees and another decision by this court: see Minister for Education v Bailey [2000] WASCA 377; (2000) 23 WAR 149.
41 I also note a recent decision of Beech J in Bedshed Franchising Pty Ltd v Battersby [No 2] [2015] WASC 281, within which his Honour refers at [20] to the observations of the Full Federal Court in Liberty Funding, and identifies factors as extracted in Springfield Nominees by Wilcox J at [21].
Determination: release of the plaintiff from implied undertaking
42 For the particular circumstances of this case, the scope of the plaintiff's release application from a documentary perspective, is considerably narrow. The circumstances of the plaintiff's application are also rather unique. Counsel for the plaintiff was explicit that the plaintiff's present belief that Mr Peters is the likely author of the anonymous complaint letter sent to the Department is not so solidified by underlying evidence that, at the moment, the plaintiff could successfully apply to this court that Mr Peters be sanctioned for a contempt of court. The plaintiff's belief is that Mr Peters may have, as an outside party, wrongly accessed and used discovered information - in particular seen from the discovery of Mr Moran's unique file number with the Department - and used this information for the purpose of writing and sending the anonymous complaint letter noted. That belief of Mr Moran arises, I infer, owing to the alleged proximity of Mr Peters to his wife's interests in this litigation, she being the second defendant. The nature of that relationship makes it likely, it is put, that Mr Peters could have learned of the materials produced within Mr Moran's affidavit of 31 October 2014 in the security for costs application made in these proceedings.
43 The compulsive interrogative and investigative powers of the OLSC of New South Wales against legal practitioners in that State are noted by Mr Moran as a means of him seeking to have that entity conduct an investigation to effectively require Mr Peters, as a New South Wales legal practitioner, to answer concerning whether or not he was, indeed, the author of the letter as Mr Moran suspects, but presently cannot prove. However, again, as I understand the plaintiff's position, it is not so much Mr Peters' authorship of an anonymous 'dob-in' letter that is important. As regards a contention concerning unprofessional conduct by a third party - namely, Mr Peters - what is more important to Mr Moran is his grievance that Mr Peters has accessed litigation information, to which his wife was privy, and has done so prior to such information (Mr Moran's specific departmental file number) being publicly made available by being read in court (as part of Mr Moran's affidavit) on the security for costs application.
44 Another stated purpose of the plaintiff's present application in this respect is a foreshadowed potential reliance upon those allegations regarding Mr Peters, if established, to be used against Mrs Peters, as second defendant, by way of contending for the aggravation of the plaintiff's damages in this litigation.
45 As noted above, both the Department and the defendants have taken essentially neutral stances on this application, choosing neither to consent to a use of the documents for the plaintiff's foreshadowed complaint purpose to the OLSC, nor opposing such a use.
46 The as expressed neutral attitude of the Department, as the producing party of the discovered information in respect of documents produced in answer to subpoenas, is one important consideration. It is one of the factors to be considered in determining whether to exercise a discretion to grant the plaintiff leave to use those documents for the intended limited purpose. I also note the essentially neutral stance of the defendants as expressed to this application, save for a qualification in respect of one financial document concerning the financial position of the first defendant, under a document which is attached as GC1 to Ms Carmelina Galati's affidavit of 4 December 2014. However, as the argument of the application advanced, the plaintiff no longer sought to put that information before the OLSC. In the end, it only seeks leave to use and produce the items at par 2.1 and par 2.3 of the application. This is, relevantly, the defendants' application by chamber summons seeking security for costs of 2 October 2014 and then Mr Moran's affidavit of 31 October 2014.
47 Here it seems, in the end, that it is questionable whether the character of the author of the anonymous complaint, as a legal practitioner or otherwise, is of much importance. The more important point is whether information from an affidavit of Mr Moran was wrongly accessed and utilised for the purpose of making the complaint to the Department. That conduct, if it occurred, is conduct which is potentially capable of being sanctioned as a contempt of this court. That is so, irrespective of whether the person who wrongly utilised such information is a legal practitioner or not.
48 I have been troubled upon this application, over whether as a matter of principle this court, and not the OLSC, given the court's power to punish persons for contempt, ought to be the entity dealing with a possible breach by someone of the implied undertaking which attached, essentially, to uses of a letter within Mr Moran's affidavit of 31 October 2014, at TFM-8, and that contained his Department file number.
49 I have also been troubled over the circumstances where, in the end, Mr Moran's affidavit of 31 October 2014 was actually read, effectively, in open chambers as a part of the evidence in the defendants' security for costs application. No suppression orders were made at that time with regard to that hearing, or with regard to my subsequent reasons.
50 However, I am, at the end of the day, and taking account of factors as identified by Wilcox J in Springfield Nominees, persuaded that I ought not to inhibit this plaintiff from exercising a right to make a complaint to the OLSC and to that end by utilising the identified materials.
51 Given the information sought by the plaintiff in Schedule A, par 2 is now truncated to include only items 2.1 and 2.3, I am persuaded I ought not, in the public interest, inhibit a proper investigation, to the extent that the OLSC thinks it appropriate or otherwise, which includes the use of Mr Moran's Department file number. As to the merits or demerits of a potential investigation by the OLSC, I, of course, say nothing. In this sense, I am moved by the last factor of those extracted by Wilcox J in Springfield Nominees - a likely contribution of the document to achieving justice in other proceedings. 'Other proceedings' in this instance encompassing a potential investigation by the OLSC with respect to a complaint lodged against Mr Peters by Mr Moran. The application corresponds with a use of information for 'non-litigious purposes' as is mentioned in the last line of the Liberty Funding decision [31].
52 Counsel has also persuaded me that - as the anonymous complaint preceded argument in this court on the security for costs application (the letter was dated 7 November 2014 and received 20 November 2014, while the hearing for the security for costs application in the court was on 5 December 2014) -there may be something in an argument that a utilisation of that material prior to that material being read into evidence can be a transgression of the implied undertaking. I say nothing more about that issue.
53 It may be in the public interest for the OLSC to decide whether or not to exercise compulsive powers against Mr Peters in terms of pursuing inquiries. I am not persuaded that I ought, in the end, inhibit a proper inquiry by the OLSC should it see fit, concerning the conduct of a New South Wales legal practitioner - merely because I have capacity to, through a contempt of court sanction, pursue a different line of possible sanction in this court - in the event that there was proven to be a sufficient basis for considering such action.
54 Accordingly, I will grant leave to the plaintiff in terms of his application of 31 July 2015, taking into account appropriate amendments to the documents sought with respect to par 2 of Schedule A attached to that application.
55 Finally, as to costs, they will be reserved upon the submission of the plaintiff, which I accept. If the plaintiff's current suspicions with respect to authorship of the 7 November 2014 letter, and an associated breach of the implied undertaking, are proven, then the plaintiff will then be in a position to seek the costs of this application.
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